gfiles magazine

September 8, 2011

THERE are two issues that have remained in the realm of police discussion for long and have generated heated debate but for certain reasons have remained in limbo. The first relates to the Evidence Act of 1872, the second to the Code of Criminal Procedure (CrPC ) – formulated in 1973 after amending the earlier Code of 1898. Sections of these laws require urgent amendment. Evidence Act, Section 25: No confession made to a police officer shall be proved as against a person accused of any offence.

Evidence Act, Section 26: No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. CrPC, Section 162: Statements to police not to be signed: Use of statements in evidence.

No statement made by any person to a police officer in the course of’ an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

Sections 25 and 26 of the Evidence Act make it clear that, in India, any statement in the shape of a confession made to a police officer has no value. Thus, making any statement before a police officer is legally equivalent to having made no statement at all. This is not good at all for delivery of justice. It makes a farce of the entire process of investigation; any clever accused can play with the evidence, fool policemen and misdirect the investigation. It also questions the very legitimacy of the Indian police.

In the case of Section 162 of the CrPC also, the purpose of taking the statement of the witness and putting it in writing gets defeated and becomes a mockery. Moreover, it might also be used as a stick to beat the police with by other agencies, including the judiciary.

The Evidence Act makes it clear that any statement in the shape of a confession made

to a police officer has no value.

In the West, the situation is quite different. The US has the “Miranda warning” or Miranda rights, required to be issued by the police to criminal suspects in police custody before interrogation to inform them about their Constitutional rights. In the UK, the law pertaining to custodial confessions is regulated by Section 76 (2) of the Police and Criminal Evidence Act, 1984. In Australia, Section 84 of the Evidence Act of 1995 legitimizes confession under a few conditions. The situation is the same for the statement of the accused and the other witnesses which are given a lot of weightage in these countries.

Just as the Western countries have prima facie moved from disbelieving to believing their police forces, we also needto change the legal situation with the same spirit and in the same direction. At the same time, we also need to introduce important measures of checks and balances as well as a large number of conditionalities. They could include: (1) Only officers of the rank of Station Officer and above get these powers; (2) Interrogation to be done only in a specified interrogation room; (3) closed circuit television to be installed in the interrogation room; (4) Video recording to be done; (5) One copy of the video to be provided to the accused or person interviewed; (6) In case of interrogation elsewhere, again video recording and one copy to be provided to the person concerned; (7) An attorney/legal counsel to be present; (8) A minimum of two police officers to be present; (9) A relative can also be present, in case the person asks for it.

Once such conditions are imposed and such safeguards taken, this change in the current provision of the law would help in redeeming the people’s confidence in the police and would also make the Criminal Justice System more efficient and effective. g

(The views expressed are personal.)

The writer is an IPS officer from the UP cadre, currently posted in the Economic Offences Wing at Meerut

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gfiles is the country's first independent magazine written, designed and produced for India's civil services—the vast and formidable
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